Pursuant to the provisions of Section 85(1)(a) of the Planning and Environment Act 1987, it is directed that a permit must not be granted.

Mr Jeremy Gobbo, QC instructed by The Partners Advisory Pty Ltd. He called expert evidence from Mr Andrew Rodda, Town Planner of Contour Consultants Australia Pty Ltd; Mr Chris Butler, Traffic Engineer of Grogan Richards Pty Ltd; and Mr Andrew Hutson, Architect.

Mr Jonathan Fetterplace, Town Planner of Urbis JHD Pty for Dennis and Carrie Price

1 This is an application under Section 79 of the Planning and Environment Act 1987 for review of the Stonnington City Council's failure to grant a permit within the prescribed time in Permit Application No 0155/04 for construction of a four and five storey building comprising offices at ground floor, apartments above and dispensation from providing more than 61 car parking spaces on land at 63-65 Station Street, Malvern. Council has subsequently advised that it would have refused the application had it been in a position to do so.

2 Mr Gobbo sought leave to substitute amended plans and described the changes as:

i A reduction in the number of apartments from 50 to 43;

ii Consequential reduction to the third floor fronting the rear laneway;

iii Deletion of the north-east corner apartment at the second floor; and

iv A range of improvements to increase daylight to bedrooms and studies.

There being no objection to this request we granted leave to substitute drawing Nos 0344TP04A - 0344TP13A, 0344TP15A and 0344TP17A.

3 The site and neighbourhood have been inspected by the Tribunal and submissions, plans, photos and other documents submitted at the hearing have been retained on Tribunal files. Ms O'Neill, Mrs Barratt, Mr Fetterplace and Mr Gobbo made written and verbal submissions. Mr Rodda, Mr Butler and Mr Hutson gave evidence. Ms O'Neill, Mr Fetterplace and Mr Gobbo also referred us to various Tribunal decisions, namely 52 Fitzroy St PL v Port Phillip CC [1999] VCAT 1416 (31 August 1999), Neometro Architects v Port Phillip CC & Ors [2002] VCAT 427 (10 May 2002), Places Australia Pty Ltd v Yarra CC & Ors [2002] VCAT 1440 (11 November 2002), 1899 Malvern Road Pty Ltd v Stonnington CC [2003] VCAT 622 (20 May 2003), Metaxas Architects v Melbourne CC [2003] VCAT 1468 (17 October 2003), Stanley Street PL v Melbourne CC [2004] VCAT 928 (14 May 2004), Rowcliffe Pty Ltd v Stonnington CC [2004] VCAT 1370 (22 July 2004) and Seban Holdings Pty Ltd v Yarra CC [2004] VCAT 1499 (28 July 2004). In these decisions various divisions of the Tribunal dealt with similar issues including building scale, use of car stacker units and internal amenity of small 'single aspect' dwellings.

4 The site is located on the northern side of Station Street opposite Malvern railway station. It is located within a larger triangular area of land bounded by Claremont Avenue, Station Street and Soudan Street. Claremont Avenue forms the southern extremity of the Malvern/Armadale Major Activity Centre focussed along Glenferrie Road and High Street, and contains a mix of mainly two storey commercial buildings from the late 19th and early 20th century. Despite being close to the Malvern Railway station the shops are under utilised, used for 'fringe' type commercial activities and some of the buildings have a rundown appearance.

5 The site and other properties within the triangle bounded by Claremont Avenue, Station Street and Soudan Street are zoned Business 2, as are the commercial buildings on the northern side of Claremont Avenue as far west as Chandlers Road. Properties at the western end of Station Street and round into Glenferrie Road are zoned Business 1. Land on the eastern side of Soudan Street is zoned Residential 1, except that the property on the south east corner of Soudan and Station Streets is within a Mixed Use zone that extends eastward along Station Street to Glendearg Grove. The railway reserve and station are within a Public Use 4 zone. Except for the review site and land abutting to the west and east (and extending to include most of the Mixed Use zone), the whole area north of the railway line is included in Heritage overlays - HO349 for the commercial area along Glenferrie Road, Station Street and Claremont Avenue and HO156 for the residential areas. Other relevant Planning Scheme provisions include Clauses 11, 14, 15.12, 16.02, 17.01, 18.02, 19.03, 21.02, 21.03, 21.05, 21.07, 21.09, 21.10, 22.02, 22.04, 22.05, 22.06, 22.09, 22.12, 22.13 and 65. Melbourne 2030 also applies.

6 The proposal involves the construction of a four and five level building comprising two ground floor offices facing Station Street, 43 dwellings (originally 50) and parking for 61 cars in a basement/ground level car park. Of these 61 car spaces, 52 are provided in 26 stacker units and 9 are at grade. Because of the fall of the land from the Station Street frontage the car park is basement level at the frontage but then becomes the ground level of the building at the rear Right-of-Way. The footprint for the new building is from boundary to boundary and site coverage is 100%. Private open space for each dwelling is provided by way of balconies, each of 8 square metres in area. The main access to the building is via a central lobby off Station Street and the building is fitted with a lift providing access between the basement and the fourth level. The fifth or top level comprises the upper sections of the 8 apartments below and internal stairs in each apartment link the two levels.

7 We agree with Mr Gobbo that the issues in this application for review can be conveniently considered as three layers - the first concerns the suitability of the proposal for the locality, the second concerns the suitability of the proposal for this particular site and the third concerns the internal amenity of the building.

8 Various policies contained in the State and local planning policy frameworks support intensification of development, including residential development, on sites close to or within activity centres. Policies also require new development to be respectful of neighbourhood character and to be sensitive to nearby residential areas. Decision guidelines for buildings and works the Business 2 Zone require consideration of the following matters:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* The movement of pedestrians and cyclists, and vehicles providing for supplies, waste removal, emergency services and public transport.

* The interface with adjoining zones, especially the relationship with residential areas.

* The streetscape, including the conservation of buildings, the design of verandahs, access from the street front, protecting active frontages to pedestrian areas, the treatment of the fronts and backs of buildings and their appurtenances, illumination of buildings or their immediate spaces and the landscaping of land adjoining a road.

* The storage of rubbish and materials for recycling.

* Defining the responsibility for the maintenance of buildings, landscaping and paved areas.

* The design of buildings to provide for solar access.

* The objectives, standards and decision guidelines of Clause 54 and Clause 55. This does not apply to a development of four or more storeys, excluding a basement.

9 We are satisfied that in terms of the first layer referred to by Mr Gobbo (suitability of the proposal for this locality) that planning policy positively supports more intensive development of this relatively under-utilised site located within the Malvern/Armadale Major Activity Centre, within a Business 2 zone, within a Group 5 - Mixed Use Centre, with no direct residential abuttals and with excellent access to two modes of public transport. We note that Mr Fetterplace and Ms O'Neill also acknowledged the suitability of a mixed use development for this site and that their main concerns involved the specific design of the proposal in terms of height, scale and internal amenity. Decision guidelines in relation to this broader locational context are also well satisfied in terms of State and local planning policy frameworks, particularly local policies dealing with the identity of commercial areas, retailing centres and residential development in commercial areas.

10 The Council expressed concern about the appropriateness of the proposed built form adjacent to a Heritage overlay precinct. The site is not within a Heritage Overlay and we consider its exclusion makes an important statement about possible future built form on this site. Ordinarily, a precinct based Heritage Overlay applies to all buildings within the precinct, whether old or new, so that the impact of any new development on the precinct can be fully assessed. So it is in Glenferrie Road where the Heritage Overlay applies to both old and newer buildings. In any event we consider that the new building is physically and visually separated from the areas included in the Heritage Overlay and that this will ensure that there is no adverse impact on the character, significance or appearance of the heritage place.

11 The second layer referred to by Mr Gobbo concerned the suitability of the proposal for this particular site. Ms O'Neill and Mr Fetterplace submitted that the proposal was too high and that on this site the building should be reduced to four storeys maximum so that it did not exceed the height of the building abutting to the west. Reducing the height would, so it was submitted, have additional benefits in terms of reducing visual bulk when viewed from residential areas to the north east and east.

12 We adopt the findings of the division of the Tribunal in the matter of Rowcliffe Pty Ltd v Stonnington CC [2004] VCAT 46 (29 January 2004) at paragraph 54:

If mere visibility becomes the test across metropolitan Melbourne, then it will be virtually impossible to construct buildings above the prevailing scale. This, in turn, would render it impossible to achieve the clearly stated urban consolidation objectives expressed in the Planning Scheme, objectives which Clause 11 requires us "to give effect to". The Tribunal rejects the notion that, because some of the buildings would be visible above the existing built form, they are therefore unacceptable. Rather, the test is whether the proposal is complementary to the surrounding area, and of a scale that can be assimilated without unreasonably disturbing the surrounding built environment.

We find that the proposed building form and architectural treatment will sit comfortably amongst the surrounding built environment, therefore its visibility to varying degrees in the surrounds, is appropriate and reasonable.

13 Unlike proposals abutting residential properties, the review site is sufficiently separated by roads and intervening buildings from these residential properties, and the normally contentious issues such as overlooking and overshadowing do not apply in this case. Although ResCode does not apply to this proposal, we note that residential properties to the east are well outside the minimum 9 metre overlooking distance referred to in Standard B22. We also note that shadow diagrams prepared in accordance with Standard B21 show that no overshadowing of residential properties will occur other than very late in the afternoon and well outside the 9am to 3pm period referred to in this standard.

14 We do not agree with the concerns raised by Council, Mr Fetterplace or Mrs Barratt in relation to the building form and consider that the building as now modified is an appropriate design response to this site. We note Mr Gobbo's advice that the proposed building is approximately 2.2 metres higher than the building to the west at No 61 Station Street, and are not persuaded that the additional height as viewed from along Station Street will be a discordant element or at odds with the built form in this location. It is undeniably longer and bolder than existing buildings but that does not mean that it should be rejected on those grounds. The rear, northeastern boundary is the most sensitive interface, caused by a combination of the fall of the land towards the rear and the proximity of the residential area across Soudan Street. On our inspection we paid particular regard to the views of the building from this direction. We acknowledge that the building will be seen from both Claremont Avenue and Soudan Street, with the clearest views from the northern and eastern sides of the intersection. Along Claremont Avenue west of Soudan Street the building will be largely obscured by the single storey shops along the southern side of Claremont Avenue and will appear obliquely when viewed from further west in Claremont Avenue. We consider that the architectural treatment of the facades, the recession of the upper level and the pulling back of the north eastern corner have achieved a building which sits comfortably on the site and with adjoining and nearby buildings.

15 We now turn to Mr Gobbo's third layer and it is because of poor internal amenity that this proposal fails. Put simply, the building needs to be completely redesigned internally to improve light into the interior of the building. We reject Mr Rodda's evidence in relation to the acceptability of borrowing light for the bedrooms sitting in behind living areas and we consider that the use of light voids as now designed is inadequate. Although there has been an attempt to improve amenity by including light voids/glazing in the revised plans, these changes appear to us as largely cosmetic and do not deal with the fundamental flaw of this building. We have considered the various Tribunal decisions referred to us but do not draw any firm conclusions or 'positions' from them in relation to borrowed light. It appears to us that while borrowed light has been accepted by the Tribunal on some occasions, it comes down (as always) to the specific characteristics of the design being considered by the Tribunal at the time, and that in a number of instances the proportion of rooms borrowing light can have a bearing on whether such an outcome is reasonable. In this case only about one quarter of the bedrooms have direct access to daylight. We find this an unacceptably high proportion.

16 Fewer dwellings, orientated to gain natural light to bedrooms as well as living areas would transform this proposal. A larger internal light well (or better still an open courtyard) would go a long way to address lack of light (and airflow) through the dwellings and would almost inevitably result in fewer dwellings. We reject the notion that because these are more modest and hence cheaper accommodation that in some way it is acceptable for internal amenity to be of a lower standard. We are surprised that the substitute plans did not deal with some of these issues, including the incorporation of more glazing to the now exposed walls of some of the dwellings and some form of roof venting.

17 Fewer dwellings within the same external building envelope would also have flow on benefits in terms of the use and layout of the basement car park. We accept the evidence of Mr Butler about the use of car park stackers, although at the hearing it was apparent that the actual design and operation of these still needs some refinement. We note Mr Butler's comments about the need for metal extensions to the stackers to allow for larger vehicles to be parked. While we do not necessarily reject the suggested changes we consider that they need to be thought through and included in revised plans. Similarly Mr Butler's suggested changes in relation to aisle width, pedestrian doorway to the laneway (and possible storage areas) needs to be revisited and also included on revised plans. A revised proposal with fewer dwellings may result in the need for fewer stackers and hence fewer modifications to fit the extended metal decks. This would be advantageous, although it is not matter that causes us to reject the layout.

18 Existing traffic congestion and on street parking is clearly a major concern to residents and Mrs Barratt raised this as one of her strongest concerns about the proposal. In relation to traffic generated by this development, we accept the evidence of Mr Butler that there will only be a relatively modest increase in traffic as a result of this development. The site has exceptionally good access to both tram and train services and we expect car usage to be reduced because of this outstanding accessibility. There would be very few sites within Melbourne that have such good accessibility and choice of transport modes and these attributes can help achieve State Government policies to reduce car based travel. We recognise that on street parking close to activity centres can be a major problem for residents and we do not doubt that residents already suffer from parking congestion. However, Council can, and has, introduced car parking restrictions to deal with this problem. We are satisfied that the proposed development (when redesigned to incorporate the changes referred to previously) will not exacerbate existing on-street parking congestion because of the number of spaces being provided on-site and because of the excellent public transport accessibility referred to above.

19 Having regard to the above, we will order that no permit issue.